Adaptive Shield - Data Processing Agreement

This Data Processing Agreement (“DPA”) forms an integral part of and is subject to the Terms of Service referencing this DPA (“Agreement”) that has been entered into by and between the Customer and the Provider as defined therein. . Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.

Whereas, in connection with the performance of its obligations under the Agreement, Provider (“Processor”) may Process Controller Personal Data (both as defined below) on behalf of the Customer (“Controller”); and

Whereas, the parties wish to set forth the mutual obligations with respect to the processing of Controller Personal Data by the Processor;

Now therefore, intending to be legally bound, the parties hereby agree as follows:

1. Definitions

In addition to capitalized terms defined elsewhere in this DPA, the following terms shall have the meanings set forth below:

1.1 “Affiliate” – means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interest in the subject entity.

1.2 “Applicable Law” – means whichever legal regime is applicable to the Processing of Personal Data under this DPA, including but not limited to the following:

1.2.1 Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”), laws implementing or supplementing the GDPR;

1.2.2 The California Consumer Privacy Act of 2018, Cal. Civil Code Title 1.81.5 and the regulations thereunder, as amended by the California Consumer Privacy Rights Act of 2020 (collectively, “CCPA”).

1.3 “Controller Personal Data” – means any Personal Data Processed by Processor on behalf of Controller pursuant to or in connection with the Agreement.

1.4 “Data protection Laws” – means Applicable Law and, to the extent applicable, the data protection or privacy laws of any other applicable country as agreed in writing between the Parties.

1.5 “Standard Contractual Clauses” – means the standard contractual clauses for the transfer of Personal Data to data importers established in third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as set out in Commission Implementing Decision (EU) 2021/914 and available here.

1.6 “Sub Processor” – means any person (excluding an employee of Processor or any Processor Affiliate) appointed by or on behalf of Processor or any Processor Affiliate to Process Controller Personal Data on behalf of the Controller in connection with the Agreement.

1.7 “Data Subject” – shall mean the person whose Personal Data is Processed and both Data Subject as defined under the GDPR and Consumer as defined under the CCPA.

1.8 “Personal Data” – shall mean Personal Data as defined under the GDPR, and ‘Personal Information’ as defined under the CCPA, as applicable.

1.9 “Processing” – shall be as defined in the GDPR and the CCPA, as applicable.

1.10 The terms “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing” and “Supervisory Authority” shall have the meanings ascribed to them in the GDPR.

1.11 The terms “Business”, “Sell”, “Share”, and “Service Provider”, shall have the meanings ascribed to them in the CCPA.

2. Applicability and the Roles of the Parties.

2.1 For Processing subject to the GDPR: When Controller Personal Data is subject to the GDPR, Controller serves as a Controller of such Personal Data and Processor serves as a Processor on its behalf. In such case, the Applicable Law shall be as described in Sections ‎1.1.1 and this DPA shall be interpreted accordingly.

2.2 For Processing subject to the CCPA: When Controller Personal Data is subject to the CCPA, Controller serves as a Business with respect to such Personal Data and Processor serves as a Service Provider on its behalf. In such case, the Applicable Law shall be as described in Section ‎1.1.2 and this DPA shall be interpreted accordingly.

3. Processing of Controller Personal Data

3.1 Processor shall Process Controller Personal Data on Controller’s behalf and at Controller’s instructions as specified in the Agreement and in this DPA, including without limitation with regard to transfers of Controller Personal Data to a third country or international organization. Any other Processing shall be permitted only in the event that such Processing is required by any Data Protection Laws to which the Processor is subject. In such event, Processor shall, unless prohibited by such Data Protection Laws on important grounds of public interest, inform Controller of that requirement before engaging in such Processing.

3.2 Controller instructs Processor (and authorizes Processor to instruct each Sub Processor) (i) to Process Controller Personal Data for the provision of the services, as detailed in the Agreement (“Services”) and as otherwise set forth in the Agreement and in this DPA, and/or as otherwise directed by Controller; and (ii) to transfer Controller Personal Data to any country or territory as reasonably necessary for the provision of the Services and in accordance with Applicable Law.

3.3 To the extent Controller requests in writing that Processor comply with specific requirements in additional jurisdictions which relate to the processing of Personal Data by processors (or the equivalent role under the relevant laws or regulations), Processor shall use commercially reasonable efforts to comply with such requirements.

3.4 Controller sets forth the details of the Processing of Controller Personal Data, as required by Article 28(3) of the GDPR in Schedule 1 (Details of Processing of Controller Personal Data), attached hereto.

3.5 To the extent that the Processor Processes Personal Data in countries outside of the European Economic Area that do not provide an adequate level of data protection, as determined by the European Commission or other adequate authority as determined by the EU, the Standard Contractual Clauses shall apply and shall be incorporated herein. Annexes 1 and 2, attached hereto, shall apply as Annexes 1 and 2 of the Standard Contractual Clauses. The Standard Contractual Clauses are modular, containing numerous sections that each pertain to a specific type of entity or transfer. For the purposes of this DPA and any transfers of data to third countries pursuant hereto, only the modular sections pertaining to module two (Controller to Processor) of the Standard Contractual Clauses shall apply, in addition to all general sections therein.

3.6 For Processing subject to the CCPA: Processor undertakes that it shall not Sell or Share Personal Data when Processing Personal Data as a Service Provider and shall not retain, use, or disclose Personal Data for any commercial purpose other than providing the Services to Controller and as otherwise permitted under the Agreement. Processor shall not combine the Controller Personal Data with Personal Data it receives from, or on behalf of, another person or persons, or collects from its own interaction with the Data Subjects, provided that Processor may combine Personal Data to perform any business purpose as permitted by and subject to CCPA. Processor further undertakes that it shall notify Controller in case Processor determines it can no longer meet its obligations required under Applicable Law.

4. Controller.

Controller represents and warrants that it has and shall maintain throughout the term of the Agreement and this DPA, all necessary rights to provide the Controller Personal Data to Processor for the Processing to be performed in relation to the Services and in accordance with the Agreement and this DPA. To the extent required by Data Protection Laws, Controller is responsible for obtaining any necessary Data Subject consents to the Processing, and for ensuring that a record of such consents is maintained throughout the term of the Agreement and this DPA and/or as otherwise required under Data Protection Laws.

5. Processor Employees

Processor shall take reasonable steps to ensure that access to the Controller Personal Data is limited on a need to know and/or access basis and that all Processor employees receiving such access are subject to confidentiality undertakings or professional or statutory obligations of confidentiality in connection with their access to and use of Controller Personal Data.

6. Security

Processor shall implement appropriate technical and organizational measures to ensure an appropriate level of security of the Controller Personal Data as set forth in the Binding Security Document attached hereto as Schedule 2. In assessing the appropriate level of security, Processor shall take into account the risks that are presented by the nature of the Processing and the information available to the Processor.

7. Personal Data Breach

7.1 Processor shall notify Controller without undue delay and, where feasible, not later than within 48 (forty eight) hours upon Processor becoming aware of a Personal Data Breach affecting Controller Personal Data. In such event, Processor shall provide Controller with reasonable and available information to assist Controller in meeting any obligations to inform Data Subjects or Supervisory Authorities of the Personal Data Breach as required under Applicable Law.

7.2 At the written request of the Controller, Processor shall reasonably cooperate with Controller and take such commercially reasonable steps as are agreed by the parties or required under Applicable Law to assist in the investigation, mitigation and remediation of any Personal Data Breach.

8. Sub Processing

8.1 Controller authorizes Processor to appoint (and permits each Sub Processor appointed in accordance with this Section ‎8 to appoint) Sub Processors in accordance with this Section 8.

8.2 Processor may continue to use those Sub Processors already engaged by Processor as of the date of this DPA, a list of which is available at https://www.adaptive-shield.com/sub-processors.

8.3 Processor may appoint new Sub Processors and shall give notice of any such appointment to Controller. If, within seven (7) days of such notice, Controller notifies Processor in writing of any reasonable objections to the proposed appointment, Processor shall not appoint the proposed Sub Processor for the Processing of Controller Personal Data until reasonable steps have been taken to address the objections raised by Controller and Controller has been provided with a reasonable written explanation of the steps taken. Where such steps are not sufficient to relieve Controller’s reasonable objections, each of Controller or Processor may, by written notice to the other party and with immediate effect, terminate the Agreement to the extent that it relates to the Services requiring the use of the proposed Sub Processor. In such event, the terminating party shall not bear any liability for such termination.

8.4 With respect to each new Sub Processor, Processor shall:

8.4.1 Prior to the Processing of Controller Personal Data by Sub Processor, take reasonable steps (for instance by way of reviewing privacy policies as appropriate) to ensure that Sub Processor is committed and able to provide the level of protection for Controller Personal Data required by this DPA; and

8.4.2 ensure that the arrangement between the Processor and the Sub Processor is governed by a written contract, including terms that offer a materially similar level of protection for Controller Personal Data as those set out in this DPA and meet the requirements of Applicable Law.

8.5 Processor shall remain fully liable to the Controller for the performance of any Sub Processor’s obligations.

9. Data Subject Rights

9.1 Controller shall be solely responsible for compliance with any statutory obligations concerning requests to exercise Data Subject rights under Data Protection Laws (e.g., for access, rectification, deletion of Controller Personal Data, etc.). Processor shall, at Controller’s sole expense, use commercially reasonable efforts to assist Controller in fulfilling Controller’s obligations with respect to such Data Subject requests, as required under Data Protection Laws.

9.2 Upon receipt of a request from a Data Subject under any Data Protection Laws in respect to Controller Personal Data, Processor shall promptly notify Controller of such request and shall not respond to such request except on the documented instructions of Controller or as required by Data Protection Laws to which the Processor is subject, in which case Processor shall, to the extent permitted by Data Protection Laws, inform Controller of such legal requirement prior to responding to the request.

10. Data Protection Impact Assessment and Prior Consultation

At Controller’s written request and expense, the Processor and each Sub Processor shall provide reasonable assistance to Controller with respect to any Controller Personal Data Processed by Processor and/or a Sub Processor, with any data protection impact assessments or prior consultations with Supervisory Authorities or other competent data privacy authorities, as required under any Data Protection Laws.

11. Deletion or Return of Controller Personal Data

Processor shall promptly and in any event within 60 (sixty) days of the date of cessation of provision of the Services to Controller involving the Processing of Controller Personal Data, delete, return, or anonymize all copies of such Controller Personal Data, provided however that Processor may retain Controller Personal Data, as permitted by applicable law. Notwithstanding the foregoing, Controller acknowledges that, due to the type of service provided, Processor is unable to support a request of a data subject to delete or correct its Personal Data, as part of and during provision of its services to Controller. For the avoidance of doubt, retention of the logs and the inability to amend or delete the logs is considered part of Processor’s services to Controller.

12. Audit Rights

We may update this Privacy Notice from time to time to keep it up to date with legal requirements and the way we operate our business, and we will place any updates on this webpage. Please come back to this page every now and then to make sure you are familiar with the latest version. If we make material changes to this Privacy Notice, we will seek to inform you by notice on our Site or per email.

12.1 Subject to Sections ‎12.2 and ‎‎12.3, Processor shall make available to an auditor mandated by Controller in coordination with Processor, upon prior written request, such information reasonably necessary to demonstrate compliance with this DPA and shall allow for audits, including inspections, by such reputable auditor mandated by the Controller in relation to the Processing of the Controller Personal Data by the Processor, provided that such third-party auditor shall be subject to confidentiality obligations.

12.2 Any audit or inspection shall be at Controller’s sole expense, subject to the terms of the Agreement, and subject to Processor’s reasonable security policies and obligations to third parties, including with respect to confidentiality. The results of any audit or inspection shall be considered the confidential information of the Processor and shall be treated with the same degree of care as Controller affords its own confidential information and/or in accordance with the confidentiality provisions under the Agreement, as applicable.

12.3 Controller and any auditor on its behalf shall use best efforts to minimize or avoid causing any damage, injury or disruption to the Processors’ premises, equipment, employees and business and shall not interfere with the Processor’s day-to-day business. Controller and Processor shall mutually agree upon the scope, timing and duration of the audit or inspection and the reimbursement rate, for which Controller shall be responsible. Processor need not give access to its premises for the purposes of such an audit or inspection:

12.3.1 to any individual unless he or she produces reasonable evidence of identity and authority;

12.3.2 if Processor was not given a prior written notice of such audit or inspection;

12.3.3 outside of normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis; or

12.3.4 for the purposes of more than one (1) audit or inspection in any calendar year, except for any additional audits or inspections which:

12.3.4.1 Controller reasonably considers necessary because of genuine concern as to Processor’s compliance with this DPA; or

12.3.4.2 Controller is required to carry out by Applicable Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Applicable Law in any country or territory, where Controller has identified its concerns or the relevant requirement or request in its prior written notice to Processor of the audit or inspection.

12.3.5 Processor shall immediately inform Controller if, in its opinion, an instruction received under this DPA infringes the GDPR or other applicable Data Protection Laws.

13. Limitation of Liability

Controller shall indemnify and hold Processor harmless against all claims, actions, third party claims, losses, damages and expenses incurred by the Processor and arising directly or indirectly out of or in connection with a breach of this DPA and/or the Data Protection Laws by Controller. Each party’s liability toward the other party shall be subject to the limitations on liability under the Agreement.

14. General Terms

14.1 Governing Law and Jurisdiction The parties to this DPA hereby agree that the competent courts in Ireland shall have exclusive jurisdiction regarding all disputes hereunder, and the parties expressly consent to such jurisdiction. This DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of Ireland. To the extent that the Standard Contractual Clauses apply, the above-mentioned jurisdiction shall be deemed the jurisdiction specified in Clause 17 of the Standard Contractual Clauses, provided that such law allows for third-party beneficiary rights.

14.2 Notwithstanding the foregoing in this Section ‎14.1, parties to this DPA hereby agree that the competent courts in California shall have exclusive jurisdiction regarding all disputes hereunder relating solely to the CCPA, and the parties expressly consent to such jurisdiction.

14.3 Order of Precedence

14.3.1 Nothing in this DPA reduces Processor’s obligations under the Agreement in relation to the protection of Controller Personal Data or permits Processor to Process (or permit the Processing of) Controller Personal Data in a manner that is prohibited by the Agreement.

14.3.2 This DPA is not intended to, and does not in any way limit or derogate from Controller’s obligations and liabilities towards the Processor under the Agreement and/or pursuant to Data Protection Laws or any law applicable to Controller in connection with the collection, handling and use of Controller Personal Data by Controller or other processors or their sub processors, including with respect to the transfer or provision of Controller Personal Data to Processor and/or providing Processor with access thereto.

14.3.3 Subject to this Section ‎14.3, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail. In the event of inconsistencies between the provisions of this DPA and the Standard Contractual Clauses (to the extent they apply), the Standard Contractual Clauses shall prevail.

14.4 Changes in Data Protection Laws

14.4.1 Controller may, by at least 45 (forty five) calendar days’ prior written notice to Processor, request in writing any variations to this DPA if they are required as a result of any change in, or decision of a competent authority under any Data Protection Laws in order to allow Controller Personal Data to be Processed (or continue to be Processed) without breach of that Data Protection Laws.

14.4.2 If Controller gives notice with respect to its request to modify this DPA under Section ‎‎14.3.1, (i) Processor shall make commercially reasonable efforts to accommodate such modification request and (ii) Controller shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by Processor to protect the Processor against additional risks, or to indemnify and compensate Processor for any further steps and costs associated with the variations made herein.

14.5 Severance Should any provision of this DPA be held invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall either be (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.

Schedule 1: Details of Processing of Controller Personal Data

This Schedule 1 includes certain details of the Processing of Controller Personal Data as required by Article 28(3) GDPR.

Subject matter and duration of the Processing of Controller Personal Data
The subject matter and duration of the Processing of the Controller Personal Data are set out in the Agreement and this DPA.

The nature and purpose of the Processing of Controller Personal Data
Rendering Services in the nature of a solution to assist in the assessment and improvement of cloud security, as detailed in the Agreement.

The types of Controller Personal Data to be Processed are as follows:
Personal Data available in Controller’s SaaS systems and Personal Data relating to the Controller’s SaaS users and activity logs of such users, including:

Configurations – data about the state and details of configurations and settings that are related to the monitored SaaS platform security posture
User profiles – such as user email, name, title, department, country, etc. (as they appear in the Customer’s user directory)
User access levels and permissions in the monitored SaaS apps
Logs – such as sign-in logs and audit logs, IP addresses, user agents, etc.
Apps installed on the instance – e.g. 3rd party apps, user consents, OAuth, etc
Device information – such as name, owner, platform, OS, etc.

The categories of Data Subject to whom the Controller Personal Data relates to are as follows:
Personal Data of Controller’s SaaS users and data available in Controller’s systems.

The obligations and rights of Controller
The obligations and rights of Controller are set out in the Agreement and this DPA.

Schedule 2: Binding Security Document

Processor is ISO 27001 compliant. Processor’s security overview is available on Processor’s website.

Processor uses firewalls to protect our internet connection
All servers and workstations must be located behind a firewall with a clear security policy.

Processor uses the most appropriate secure settings for its devices and software. Processor’s Information Security Policy contains software security, email and internet use, and third party security protocols.

Processor controls who has access to your data and services.
Processor uses separate environments: development, staging, and production. While the development and staging environments serve Processor’s personnel, only the production system is available to customers. Customer account data is only accessible by the customer’s users.

Processor protects itself from viruses and other malware.
All removable media needs to be scanned for viruses before use in any information system. Server protection will be based on whitelisting permitted inbound access, automatic security patching, and automated monitoring.

Processor keeps its software and devices up-to-date.
All workstations will be set to install security updates automatically and OS vendor security products (where applicable).

Processor regularly backs-up its data.
Data backups are generated on a daily basis and retained for 2 weeks using snapshots.

Annex 1

Annex 1 to the Standard Contractual Clauses – MODULE 2 (CONTROLLER TO PROCESSOR)

The following Annexes form part of the Standard Contractual Clauses and must be completed and signed by the Parties.

A. List of Parties

DATA EXPORTER (Controller)

Name: As listed in the Agreement
Address: As listed in the Agreement
Point of Contact (name, position, contact details): As listed in the Agreement

DATA IMPORTER (Processor)

Name: Adaptive Shield, Inc.
Address: 1209 N Orange Street, Wilmington, DE 19801
Point of Contact (name, position, contact details): As listed in the Agreement or at [email protected]

B. Description of Transfer

Categories of data subjects whose personal data is transferred
As described in Schedule 1

Categories of personal data transferred
As described in Schedule 1

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a record of access to the data, restrictions for onward transfers or additional security measures
None

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Continuous

Nature of the processing
As described in Schedule 1

Purpose(s) of the data transfer and further processing
As described in Schedule 1

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Data will be retained for as long as necessary for provision of the Services and in accordance with Section 11 of the DPA.

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
As described at: https://www.adaptive-shield.com/sub-processors.

C. Competent Supervisory Authority
The competent supervisory authority regarding this transfer is Ireland, in accordance with Clause 13.

Annex 2

Annex 2 to the Standard Contractual Clauses

Description of the technical and organizational security measures implemented by the data importer in accordance with Clause 8.6 (or document/legislation attached):

As described in Schedule 2.